Velasco Grace Ewayan v. Torture Claims Appeal Board

HCAL 1347/2022

[2026] HKCFI 2249

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1347 OF 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 33-year-old national of the Philippines who arrived in Hong Kong on 15 January 2020 with permission to work as a foreign domestic helper until the expiration of her employment contract on 15 January 2022 or within 14 days of its early termination, but when her employment was prematurely terminated on 4 November 2020 and when the extension of her visa expired on 15 January 2021, she did not depart and instead overstayed, and on 19 January 2021 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to the Philippines she would be harmed or killed by her creditor for failing to repay her debts and/or by her former boyfriend for having an affair with another man in Hong Kong.  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Lake Sebu, South Cotabato, the Philippines.  After leaving school she cohabited with her boyfriend and raised a family with 3 children in her home district.

3.In 2015 she started working as a domestic helper in her home district to help supporting the family, and in late 2019 she applied to work as a foreign domestic helper in Hong Kong and borrowed a loan from a local money-lender to pay for the agency fees and expenses, and on 15 January 2020 she arrived in Hong Kong to start her employment and to remit money to the Philippines to repay her loan by monthly instalments.

4.However, after her employment was prematurely terminated on 4 November 2020, and when she was unable to repay her loan, her creditor then made death threats against her, and so she was afraid to return to the Philippines and therefore overstayed in Hong Kong.

5.During her stay in Hong Kong the Applicant met and formed a relationship with another man, and when her boyfriend later found out about it, he became furious and threatened to kill her when she returned to the Philippines, and so the Applicant raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 26 November 2021 and attended screening interview before the Immigration Department with legal representation.             

6.By a Notice of Decision dated 13 January 2022 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non‑derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her creditor and/or former boyfriend upon her return to the Philippines as low due to the low intensity and frequency of past ill‑treatment from them, that there is no evidence of any real intention of her creditor or her former boyfriend to seriously harm or kill her in what were essentially private monetary or relationship disputes between them only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in the Philippines with a large population of 100 million people spread across a vast territory of more than 300,000 square kilometers that it would not be unduly harsh for the Applicant as an able‑bodied adult with working experience to move to other areas of the country away from her home district in large cities such as Manila where it would be difficult if not impossible for anyone to locate her.

8.On 25 January 2022 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 3 October 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 16 November 2022 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence about her alleged debts owed to some local money-lender that it doubted and rejected the credibility of her claim of fear of harm from her creditor that caused her to overstay in Hong Kong to seek protection and concluded that it is not accepted that she owes any money to any creditor or of any threats from any creditor or that she will face any threats from such creditor over any debts upon her return to the Philippines, while it accepted her claim of having disputes with her former boyfriend over her affair with another man in Hong Kong but found no reliable evidence of any real intention of her former boyfriend to seriously harm or kill her other than just angry words and empty threats, and that in any event it was a private relationship dispute between just the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon her return to the Philippines as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.    

10.On 28 November 2022 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or her supporting affirmation of the same date to which she just attached a copy of the decision but without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for her application.  As such, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge of the Board’s decision.

11.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

12.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in her claim even if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of the Philippines, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

13.In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

14.Moreover, the Applicant has recently on 13 March 2026 in writing requested to withdraw her application as her issues in her home country have already been resolved that she now wants to return to the Philippines as soon as possible.

15.As I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation of no more issue for her to return to her home country, I accordingly dismiss her leave application.

Dated the 23^rd day of April 2026

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1